Home > George Stephanopoulos: Should Threat of Koran Burning Make Us Rethink First Amendment?

George Stephanopoulos: Should Threat of Koran Burning Make Us Rethink First Amendment?

By

Scott Whitlock

September 14, 2010 - 4:33pm

ABC's
George Stephanopoulos on Tuesday wondered if a Florida pastor's threat
to burn a Koran could "change" and "challenge" the meaning of the First
Amendment. [MP3 audio here[1].]

Talking
to Supreme Court Justice Stephen Breyer, the Good Morning America host
speculated, "When you think about the internet and when you think about
the possibility that, you know, a pastor in Florida with a flock of 30,
can threaten to burn the Koran and that leads to riots and killings in
Afghanistan, does that pose a challenge to the First Amendment, to how
you interpret it?"

Stephanopoulos followed-up, "Does [the threat of the Koran burning] change the nature of what we can allow and protect?"

The former top aide to Bill Clinton fawned over Breyer, a judge selected
for the Supreme Court by the same Democratic President.

Breyer was
appearing on the show to promote his new book on democracy.
Stephanopoulos gushed, "I love the title of this new book, Making Our
Democracy Work. And that's not only the title of the book, but it's also
your mission. And you believe for that to happen, people have to
understand our institutions and be engaged with them."

A transcript of the segment, which aired at 8:41am EDT, follows:

GEORGE
STEPHANOPOULOS: The national and international debate over that Florida
pastor who threatened to burn the Koran hit a boiling point last week.
And for now, the issue is being batted around the court of public
opinion. But it could end up in a court of law. Perhaps, even, the
Supreme Court. That's one of the topics I discussed with Supreme Court
Justice Stephen Breyer, when he stopped by to discuss his new book,
Making our Democracy Work. I love the title of this new book, Making
Our Democracy Work. And that's not only the title of the book, but it's
also your mission. And you believe for that to happen, people have to
understand our institutions and be engaged with them.

SUPREME COURT JUSTICE STEPHEN BREYER: Yes.

STEPHANOPOULOS: How do they do it?

BREYER:
Well, the first step is to know what it is that we do, know how your
legislature works, how your governor works, how your mayors work, how
your courts work.

STEPHANOPOULOS: You also in this book plumb, I
guess what you call something of a mystery, because it didn't have to
turn out that way, that we built up in our tradition, the norm that when
the Supreme Court decides something, the public tends to follow.

BREYER:
There's a history in this country, of bad events and marvelous events.
And over time, it's led to a general acceptance of the court, of having
the last word on most constitutional issues, even when they are wrong.

STEPHANOPOULOS:
That was really tested that idea, when you were sitting on Bush V.
Gore, the 2000 election, you wrote at the time, you were against it.

BREYER: Yes, I was.

STEPHANOPOULOS: You said it was a self-inflicted wound that hurt the court.

BREYER: Yes.

STEPHANOPOULOS:
But, you also point out, and you're write about this in your book, that
one of the most remarkable things about this divisive case that
decided, in many ways, a presidential election, was that the people
accepted that.

BREYER: I heard Senator Reid say that.

STEPHANOPOULOS: The Democratic leader in the Senate.

BREYER:
Yes. He said one of the most remarkable about that case is one of the
things least remarked. Nobody remarks it because it's so natural. Here is a case that's very unpopular, that in my opinion, as a dissenter, was wrong. And yet, the public did not start shooting each other.

STEPHANOPOULOS: How do you explain that?

BREYER:
I explain that. That's a really good question. You have to learn about
history in the United States. We had a Civil War. We've had 80 years of
legal segregation. We've had many ups and downs. But over time, the
public has come to accept the need to have an institution that will
protect minority rights.

STEPHANOPOULOS: One of the tangible
symbols that expresses this idea that the institutions have to work
together, is the idea that every year, you all, members of the court, go
to the President's State of the Union address. It became a remarkable
moment, when President Obama criticized the Citizens United case, where
you were actually on the same side as President Obama. You were in the
minority. But, he criticized the case. And Justice Alito got visibly
upset. It provoked this reaction from chief Justice Roberts. I want to
show you this.

SUPREME COURT JUSTICE JOHN ROBERTS: The image of
having the members of one branch of government, standing up, literally
surrounding the Supreme Court, cheering and hollering, while the court,
according to the requirements of protocol, has to sit there
expressionless, I find troubling.

STEPHANOPOULOS: Did you find it troubling?

BREYER:
I've been there for a while. [Laughs] As you have in your job, people
say all kinds of things about someone in public life. Sometimes they
agree. Sometimes they disagree. My job is not to say things that
criticize me or others on our court. My job is to do it as best I can.

STEPHANOPOULOS:
But, he's walked away from that saying, perhaps he won't go in the
future. Justice O'Connor when I talked to her about it in the future
says she would rethink her attendance. Does it make you rethink your
tradition of going?

BREYER: No, no.

STEPHANOPOULOS: Why not?

BREYER:
Because I think the reason that I want to go, and I think that the
reason we should be there, is because, particularly today, where for
better or for worse, people get lots of their information visually. It
shows in that room, this is your federal government. The President is
there. The cabinet is there. The, the Congress is there. The Joint
Chiefs are there. And I'd like some of the judges to be there, too,
because the judges have a role in this government.

STEPHANOPOULOS: Even if you're the only one there.

BREYER: Even if I'm the only one, I'll be the only one. But, I'll do that because I believe very, very strongly in this.

STEPHANOPOULOS: You
know, when we spoke several years ago, you talked about how the process
of globalization was changing our understanding of the law. When you
think about the internet and when you think about the possibility that,
you know, a pastor in Florida with a flock of 30, can threaten to burn
the Koran and that leads to riots and killings in Afghanistan, does that
pose a challenge to the First Amendment, to how you interpret it? Does
it change the nature of what we can allow and protect?

BREYER:
Well, in a sense, yes. In a sense, no. People can express their views
in debate. No matter how awful those views are. In debate. A
conversation. People exchanging ideas. That's the model. So that, in
fact, we are better informed when we cast that ballot. Those core values
remain. How they apply can-

STEPHANOPOULOS: The conversation is now global.

BREYER:
Indeed. And you can say, with the internet, you can say this. Holmes
said, it doesn't mean you can shout fire in a crowded theater. Well,
what is it? Why? Well people will be trampled to death. What is the
crowded theater today? What is-

STEPHANOPOULOS: That's exactly my question.

BREYER:
Yes. Well, perhaps that will be answered by- if it's answered, by our
court. It will be answered over time, in a series of cases, which force
people to think carefully. That's the virtue of cases.

STEPHANOPOULOS:
When we last spoke, when you wrote your last book, you had been on the
court for about ten years. Yet, you were still the junior justice.

BREYER: I was.

STEPHANOPOULOS:
That's no longer true. You now have Justice Sotomayor. Soon, Justice
Kagan is going to be joining you as well. You talked about how before
your first session of court, you were nervous. I was just wondering if
you have advice for Justice Kagan as she prepares for that.

BREYER:
She will be nervous. But, don't worry about it. There's no way not to
be nervous. For quite a while, the cases- now, they will be final.
There's no one to appeal to. And there is an instinct of everyone to be a
little uncertain. To be a little unsure about whether my views, in my
case, will I be able to answer these decently? Will I make some terrible
mistake? I surely hope not. And that lasts for a while. It takes a
while to adjust.

STEPHANOPOULOS: Justice Breyer, thanks very much.

-Scott Whitlock is a news analyst for the Media Research Center. Click here[2] to follow him on Twitter.[3]

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